Crown Pastoral Land Reform Bill

Members, we now come to Part 2. This is the debate on clauses 17 to 22, which are amendments to the Land Act 1948. The question is that Part 2 stand part.

Thank you, Madam Chair. Minister, I wish to speak to the amendment in my name, which would be to add new clause 17A to amend section 2. And that would “(1) Amend the definition of ‘improvements’ by inserting after ‘includes’:” the words: “‘the managed regeneration of indigenous vegetation’.” And section 2 would be amended to “Insert a new defined term in its appropriate alphabetical order: managed regeneration of indigenous vegetation means regeneration resulting from active farm management decisions to promote the regeneration of indigenous vegetation whether by way of covenant, fencing, stock management practices, or otherwise”.

Now, I note, Minister, that one of the goals of this, as has been articulated, is to improve the environmental outcomes on farms. And although I note that the Minister has acknowledged that this is done by many, if not most—and I would say all that I’ve certainly come across—if that is the goal then the Minister should support this, because this amendment would address the potential of Crown pastoral land to contribute to New Zealand’s commitment to the reduction of greenhouse gas emissions; something that this Government has made a lot of noise about. In fact, it’s likely to be making announcements next week that it’s spending significant money in the Budget to encourage that. So if it’s going to encourage it there, why not encourage it here on these huge estates—this huge area of the South Island? The scale of the Crown pastoral land is approximately 1.2 million hectares. It provides the potential for lessees under this amendment to adopt farm management practices which would contribute to both greenhouse gas emissions and positive indigenous biodiversity outcomes, both things that I can only imagine that this Government must surely support, given all the noise it has made about its commitment to a reduction of carbon in our atmosphere.

The importance of indigenous biodiversity, which I think is something that this Government is contemplating considering—why not address it here? This amendment would actually provide an opportunity for the Crown pastoral lessees to get some benefit out of actually actively managing positive indigenous biodiversity on the farms and by doing that actually provide a significant benefit to the country. This would require managed regeneration of indigenous vegetation to be recognised as a lessee-owned improvement. This proposed amendment would provide for that outcome. I note this Government is allowing others into the country to buy up farmland to encourage the planting of more forestry. So they’ve encouraged carbon sequestration. Here we have many high country farms owned by generations of New Zealanders. Why not provide a mechanism for them to be able to take some benefit to actually achieving these same outcomes?

I’ll just speak to that because, on the face of it, it seems a reasonably sensible proposal. It’s one that I’m prepared to look at as we go forward but the High Country Accord has also put a similar proposal. It goes beyond, of course, pasturage; I guess it’s restoration of indigenous. It’s not planting exotic pines or exotic vegetation so it’s in the middle there somewhere and I think that there needs to be more discussion in this area. I’m not opposed to that, but I think there are far-reaching consequences of just including it here and how it might apply across other Crown land.

So the member has raised, as the accord has, a legitimate question as we go forward, as we’re looking at sequestration, as we’re looking at utilisation of all land across New Zealand—Māori-owned land, Crown land, private land of course—to have more indigenous vegetation and exotics. So I commit to the member that this is an ongoing issue that will be considered, but I don’t consider it appropriate to just insert it in the bill at this time without considering the far-reaching consequences.

Thank you, Madam Chair. Sorry, I’ll just rearrange everything in front of me. I would like to speak to an amendment under my name seeking to amend clause 21A, and I’d like to turn the Minister’s mind to subsection (2A) and, if you wouldn’t mind, just to clarify for him: “If the land under the lease or licence is pastoral land, the Commissioner must not consent to the transfer, sublease, or other disposal unless satisfied that the applicant has made reasonable endeavours to enhance public access to the land.” It must be terribly embarrassing for the Government every now and then when private enterprise seeks to do its work for it, and in this case, the lessees have hired private lawyers to do the work for the Government, because here we have an apparent statutory conflict. So I’d ask the Minister: what is the legislation that the leaseholder is required to prioritise here? Is it this bill or is it the health and safety Act? Which legislation has precedence, and what would you say, Minister, to a leaseholder who has to allow public access to gain or retain consent for an activity but, at the same time, is liable for any accidents that might happen on that property to someone who gains access?

The health and safety legislation is pretty clear around all farmland, and the landowners have to do all they reasonably can, of course, to alert people to potential dangers, and I don’t see that there’s any more danger here than for other farmland, where a large a number of farmers provide public access. The issue raised here was one of contention. It went back a number of years where a foreign landowner, effectively, blocked access to the high country through his particular property, and it raised the reality that the values of New Zealand farm owners and high country lessees and the values of foreigners were not always aligned. And so, God help us if the National Party ever get back into power again; they are most likely to consider the sale of New Zealand land to anyone, and that would be a real risk, and they then would open up the realities of that conflict of values.

And because these are large blocks of land and because sometimes they do block access into other high country recreational areas—it’s not often, and I have to acknowledge the vast majority, if not practically all of the high country lessees have provided public access over the years, with a few exceptions. And so the question was, “Well, should we intervene and demand public access?” No, that was going a little too far. We said, “Well, at the point of sale, then the public access, if it has been blocked, should be considered by the commissioner prior to approving the transfer.” I think it’s a reasonable proposition. I don’t think there will be many situations like this at all in the future, but it’s clear to know that there is a provision should public access be blocked through a property to the public estate at the back—often it’s the high country—that, if that’s blocked when it’s transferred, then there’s an opportunity to have a look at that situation. That’s what this is about.

Thank you, Madam Chair. I would also like to just comment and ask the Minister a question about clause 21A, amending section 89, and the changes there. In the bill as it was reported back from select committee, the commissioner must not consent to the transfer of a pastoral lease unless they were satisfied that the applicant had made reasonable endeavours to enhance public access. In the Minister’s Supplementary Order Paper 129, the burden has been changed and now it’s the commissioner must consider whether requests for public access have been unreasonably refused by the lessee or licensee in the past. So there’s a higher threshold around public access which actually benefits the leaseholder. Can I ask the Minister why this change was made from what was reported back from select committee? And was it the result of consultation with the High Country Accord or Federated Farmers or leaseholders?

Yes, all of the above. It was through thorough consultation with all the parties. Some exaggerated the dilemmas, and there weren’t that many blocked access situations at all. There was a longstanding one; I’m not going to go into the details of that. But actually the vast majority of lessees do provide that public access. That goodwill should be maintained, and I did not want to have overreach in this piece of legislation implying that every lessee was blocking access. That would be unfair, it’s inaccurate, and I think the goodwill that has been established across almost all the leases should be maintained, and that’s what we’re trying to do here.

Thank you, Madam Chair. Minister, I just wanted to speak to the tabled amendment in the name of my colleague Nicola Grigg, marked “G” on the Table. This would amend the bill, namely paragraphs 1 and 2 of Schedule 2, under Part 1 of proposed new Schedule 1AB, permitted activities, which were fundamentally “incapable of practical application. They will result in one or more of the following outcomes: Deterrence of sensible farm management practices being undertaken because of the cost and delay of an application process [and/or] Deferment of such applications and (in the case of weed control with consequential adverse effects) [and/or] Increased cost and delay in undertaking sensible farming practices [and/or] Undermined relationship between farmer and front-line officials. By way of example, the current Bill requires consent for the clearance of exotic weeds (e.g. gorse, broom, wilding pines)—which are a significant issue across the South Island—unless: The exotic pest plants comprises ‘no less than 90% of the vegetation cover’ and The Lessee has not controlled more than 25 hectares of exotic pest plants in the past 5 years. The obvious issues [with this] are: What is the 100% against which the 90% is to be measured. A single wilding pine or gorse bush in a paddock would seem not to comprise 90% of the vegetation cover of that paddock and therefore cannot be removed without an application for consent”. So we’re sort of seeing some of the confusion that can arise very, very quickly in adverse effects.

Another question is, “Is the 90% to be measured by area or by species”? Another question is: “If you have a property of 10,000 hectares, a farmer is limited to controlling 25 hectares for pest plants in any five-year period (about 0.25% of the farm) whereas most farmers want to have an ongoing pest plant control programme”. Another issue is: “Leaseholders are under an obligation by the terms of the lease; local and regional plans; and the Biosecurity Act 1993 to control pest plants”. So there’s an inherent conflict there. Another issue is that “The proposed law requires leaseholders to obtain consent to perform what other law obliges them to do”. So these proposed changes in this tabled amendment, Minister, would introduce some common sense to the bill and would make it understandable, and certainly ensure that we have the outcomes we want to see, which is pest plants being removed. We don’t want to see another situation like up in the top of the North Island where wilding pines are out of control, and certainly other parts in my region and Central Otago, parts of Southland, with wilding pines have really got away. We want our high country farmers to have the tools to remove those quickly before they become a problem.

So this tabled amendment would “anticipate the use by the Commissioner of farm plans to provide a more efficient mechanism for management oversight, and a practical framework for the management of specific pest plants.”

Thank you, Madam Chair. I would like to refer to the tabled amendment in my name, labelled “E” on the Table. It relates to a fairly fine point, but an important one none the less. So the tabled amendment seeks to, in Schedule 1 of the bill, propose a new Schedule 1AA 3(4), on page 40 of the bill. What this tabled amendment seeks to do is to replace the proposed clause 3(4) and replace it with the following words: “Nothing in this clause limits or affects the right of judicial review that a person may have in respect of the proposal or related review [of] a Court’s ability to order that a tenure review [process] shall … as if this Act had not been passed or [made] other such orders as the Court sees fit.” Now, that might sound a little complicated, so let me just take a minute or two to explain to the committee what is at issue here.

The issue, really, is that the bill as introduced extinguished the rights of lessees to tenure review and to apply to the High Court to review the decision-making process of the commissioner and, where relevant, if necessary, the Minister, as well. So, by ending tenure review, that process of providing an opportunity for a judicial review has been removed. So the bill as reported back from select committee actually responded to submissions on that very point. The bill now provides for review, but—and it’s a big but—it provides no effective remedy to the review. So a successful High Court application could result in a finding that the Crown had acted unlawfully, but with the repeal of a tenure review, the court then would be unable to actually grant any practical remedy upon their finding.

So this tabled amendment in my name addresses that deficiency and it ensures that where legal rights can be established, then a remedy—an effective remedy, an appropriate remedy—can indeed be ordered. I think that’s just a bit of an error on behalf of the wordsmiths that did a little bit of drafting; I don’t think there was any intent, in a sinister way, to remove that right to provide an effective remedy. But my tabled amendment provides for a remedy to be ordered when it is appropriate to do so by the court.

Thank you, Madam Chair. It’s probably the right time to follow on from Scott Simpson with his tabled amendment with another one here, which is the amendment labelled “F” on the Table. On page 41, it talks about no compensation being payable, so no compensation. It says under clause 6(1) of the bill, “No compensation is payable by the Crown”—

💬 Dr Duncan Webb: I raise a point of order, Madam Chair. My understanding is that schedules are to be debated at the same time as the part to which they relate. Schedule 1 of the bill relates to Part 1 of the Crown Pastoral Land Act, which is, indeed, Part 1 of this bill, and this debate should have been held earlier.

💬 Stuart Smith: A point of order.

CHAIRPERSON (Hon Jenny Salesa): Just wait one second. I’ll just get some advice on this.

💬 Stuart Smith: A point of order.

CHAIRPERSON (Hon Jenny Salesa): Let me deal with the first point of order. So Dr Duncan Webb is indeed right. Schedule 1 should have been debated with Part 1.

💬 Stuart Smith: Madam Chair, that’s not the advice that we had when we started on this. In fact, the previous Chair said the number of tabled amendments that were included; it was five, as I recall, and in fact, she said that. So we followed that advice, and I think it would be most improper to not continue in that way, because I’ve got a tabled amendment here I want to debate and we haven’t spoken to those. I know the members are very uncomfortable on the other side, but that doesn’t mean things shouldn’t be done properly here.

💬 Joseph Mooney: A point of order, Madam Chair. I actually had the same reading as my colleague across the House earlier in the debate in Part 1, and I went to speak to a tabled amendment under my name, and I had a ruling from the then Chair that I would have until Part 2 to do so. So we have proceeded on the basis of that, and, as my colleague Stuart Smith just said before, it would be inherently unfair if we were then unable to speak to these tabled amendments, given the advice we were given previously that we could not speak to them under Part 1.

CHAIRPERSON (Hon Jenny Salesa): I will allow for now for you to speak to the tabled amendments now, but the Clerk is going to go out and check with the previous Chair what her ruling was. But for now, I’ll let you go ahead.

Thank you. So I was actually speaking to the tabled amendment of Scott Simpson, which refers to clause 6 on page 41 of the bill, which says no compensation is payable. In clause 6(1), “No compensation is payable by the Crown for any loss or damage, or any adverse effect … or under any lease or … right [of] interest, arising from the enactment or operation of [this] amendment Act.” Clause 6(2) says “If there is any inconsistency between this clause and any other enactment or rule of law, this clause prevails”.

Now, my colleague Scott Simpson has suggested on his amendment, and I agree with this, that compensation may be payable, and clause 6 should say, “Nothing in this Act precludes a court ordering that the Crown is liable to pay compensation in connection with a judicial review in respect of a proposal or related review, or for any loss or damage, or any adverse effect … or under any lease or other right of interest arising from the enactment or operation of the amendment Act.” Now, if you’re in a long-term—and this has been a very long-term legal relationship with the Crown, and the Crown comes along and then changes the rules on the farmer and the farmer goes for a judicial review and the Crown is found to be incorrect, would it just not make good moral judgment for compensation to be able to be payable? So I’d like the Minister to make a comment on that, please.

Well thank you, Madam Chair. It is a pleasure to get to speak on my amendment which is labelled “I” on the table. It is to amend Schedule 2 of the Crown Pastoral Land Reform Bill; a proposed new section 16 on page 43. It would strike out that one and have, “Maintaining: a. existing consented roads, paths, or tracks (including laying local gravel); or b. roads, tracks, or paths for which no record of a consent having been issued is held by the Commissioner, but which was formed prior to 1990 and the Commissioner has not notified the lessee or licensee that the formation of that road, path or track required consent; and c. any such a road, path, or track by way of any necessary realignment following a weather, fire, or seismic event not involving more than 400m of formation of replacement road, track, or path.”

Now, the reason for this is quite simple. These places, and some have been farmed for 160 years—they didn’t have consents 160 years ago, and Land Information New Zealand might not have records for all of those tracks and almost certainly do not. It’s just the way things are done. And yet this is sneaking something in, and an unintended consequence of this is that there are going to be a lot of activities that would have been normally carried out on a property that were not considered necessary to have consents in this bill—because it’s already in there—but for this omission of these tracks that don’t have consents. And what’s more, if the Crown was concerned about that, the commissioner should have actually notified the property owner that those tracks, paths, etc., don’t have consents, and they could have done something about it, but they haven’t done that.

So I think it’s inherently unfair—this is what we’ve heard several times through this debate tonight—and I’m sure it’s just an omission, just like the 90 percent is an omission as I alluded to before in new section 1(c), set out in Schedule 2: the invasive exotic pest plants comprise no less than 90 percent of vegetation cover. You see, you don’t need a consent only if the ground is covered by 90 percent or more by an exotic pest. That is just, again, poor drafting. It’s just a rushed bill, rushed through. The hearing of the submissions that came in—well, they weren’t really paid much attention to, I don’t think. I think there could have been far more interaction between the Government members and some of the submitters but that just didn’t happen. And you know, look, we can say why, but I think it’s pretty obvious and I don’t think there’s any need to do that.

But you’ve got an opportunity now, Minister, to sort this out, and certainly in my case to support this amendment—a very good one. Minister Damien O’Connor, I know that you do have a fair streak running through you, and this is very fair, and I think that you should vote for this. I think you should also answer the question I asked you before, about 90 percent, where you didn’t come back to that—we need to hear that. Thank you.

It’s a bit late for that member. This bill went from the House into select committee, where I and other members were open to proper discussion and consideration of these kinds of issues. No, the Opposition chose to just oppose the bill in its entirety rather than work through to improve the bill where things like this might have been considered properly.

One of the issues raised by the members over there; and it’s something I’ve looked at, the one of permitted, discretionary, and banned. These are extensive lists. I’ve made the point before about, actually, the National Government’s legislation mean they all had to be discretionary. But I come back to a very small list of prohibited activities. I won’t dwell on those, but can I come back to the one of controlling invasive, exotic plant pests—the area involved does not exceed 25 hectares in any five-year period. That issue has not been brought to my attention before. Indeed, by submitters—and I’ve talked to the accord on a number of occasions and Land Information New Zealand have been listening—and indeed the select committee could have made a recommendation on that and it could very well have been changed. But no, the Opposition just chose to belligerently oppose this bill and not do what it should do on behalf of the lessees and to make the adjustments necessary. I was open to any of them.

Can I say that all the Opposition did is came back and said, “We oppose the bill.” Can I say that at the heart of the progression here will be the implementation of farm plans. That, I think, is something that the high country farmers are welcoming. It’s an opportunity to work through—many of them will have extensive farm plans in place. Some won’t. But it’s an opportunity to work through all these issues, and where there might be a situation where more than 25 hectares of control is required, then I would expect the commissioner working through that farm plan to approve that—if it’s sensible, with the proper mitigations or whatever. This is the kind of sensible approach that we will take moving forward to working in partnership with those high country farmers.

I would like to make a ruling in terms of Part 1 and Part 2 and the amendments. The previous Chair did allow calls to be made on Schedules 1 and 2 during her time on the Chair with the debate on Part 1. I did follow it a little bit from my room. There was probably about up to an hour and a half spent on Part 1, and I do recall one of the things that the Chair at the time said was that she encouraged members to take calls on the amendments, because it had been nearly an hour and the amendments had not actually been discussed. I’ve given members some leeway to take calls on the schedules during Part 2, but I’m now ruling that this debate will only be on Part 2 and the amendments to it from this point.

The question is that the Minister’s amendments to Part 2 set out on Supplementary Order Paper 129 be agreed to.

The question is that Joseph Mooney’s tabled amendment to insert a new clause 17A be agreed to.

Nicola Grigg’s tabled amendment to delete clause 21A(3) is out of order as being inconsistent with a previous decision of the committee.

The question is that the Minister’s amendment to Schedule 1 set out on Supplementary Order Paper 129 be agreed to.

The question is that the Hon Scott Simpson’s tabled amendment to Schedule 1, new Schedule 1AA, to replace clause 3(4) be agreed to.

The question is that the Hon Scott Simpson’s tabled amendment to Schedule 1, new Schedule 1AA, to replace clause 6 be agreed to.

The question is that the Minister’s amendments to Schedule 2 set out on Supplementary Order Paper 129 be agreed to.

The question is that Nicola Grigg’s tabled amendment to Schedule 2, new Schedule 1AB, to replace items 1 and 2 with new items 1 and 2(c) be agreed to.

The question is that the Hon Scott Simpson’s tabled amendment to Schedule 2, new Schedule 1AB, to replace item 14 be agreed to.

The question is that the Stuart Smith’s tabled amendment to Schedule 2, new Schedule 1AB, to replace item 16 be agreed to.